LAW

Soli J. Sorabjee on Supreme Court Judgement on Hindutva

The Supreme Court judgements in the election appeals of Shiv Sena-BJP alliance candidates are of far- reaching significance.

The Court rejected the contention that appeal to religion must be a direct one, such as "Vote for A because he is a Hindu" or "Do not vote for B because he is a Muslim or Christian". It held that the substance of the speech and the manner in which it is meant to be understood by the audience determines its nature, and not the camouflage by an artistic use of the language.

The Court also repelled the contention that an election speech making an appeal to religion is not prohibited unless it prejudicially affected public order because the underlying purpose of the section was to ensure that the religion of a candidate cannot be used for gaining political mileage. The Court, however, clarified that mention of religion as such in an election speech is not forbidden. A speech with a secular stance alleging discrimination against any particular religion and promising removal of the imbalance cannot be treated as an appeal on the ground of religion. In other words, religion is not a dirty word nor is mere reference to it during election campaigns taboo. This part of the judgement is unexceptionable.

 Section 123(3) was challenged on the ground that it violated freedom of speech guaranteed by Article 19(1)(a)The Court ruled that the restriction was covered under the head of 'decency' which expression indicates "that the action must be conformity with the current standards of behavior or propriety". The Court did not limit 'decency' to sexual decency. It held that an appeal for votes should not be made on the ground of the candidate's religion which by itself is no index of his suitability as a member of the House and doing so in a secular State, is against the norms of decency and propriety.

In view of the powerful emotions which are generated by religion in our country and its divisive consequences and the vital importance of free and fair elections, the Court has struck the right balance between competing constitutional values with pragmatic realism.

A vexed issue before the Court was about the meaning of 'Hindutva' and 'Hinduism' and the effect of the use of these expressions in election speeches. After referring to previous Supreme Court judgements, the Court ruled that no precise meaning can be ascribed to the terms 'Hindutva' and 'Hinduism', and in the abstract these expressions cannot be equated with narrow fundamentalist Hindu religious bigotry because "ordinarily 'Hindutva' is understood as a way of life or a state of mind" Consequently, a mere reference to 'Hinduism' would not automatically attract the statutory prohibition. It is the kind of use made of these words and the meaning sought to be conveyed in the speech that would determine whether a particular speech falls within the prohibition. The Court warned that any misuse of these terms would be dealt with strictly.

On a theoretical plane and in the abstract the Court's conclusion may be justified. But what is overlooked is that the use of these expressions... by candidates of political parties whose stance is manifestly hostile to the minority communities, especially the Muslims, inevitably acquire a religious or rather anti-religious complexion. The Court overlooked its earlier caveat that public speeches during election campaign ordinarily are addressed to "audience comprised of common men and therefore, the manner in which it would be understood by such an audience has to be kept in view". It would be utterly unrealistic to believe that the persons who heard speeches extolling Hindutva from candidates of Shiv Sena-BJP alliance would regard them as an exposition of the way of life of the Indian people and the Indian culture of ethos.

The worry is that the Court's observations are likely to be used by certain political parties to circumvent the statutory prohibition by recourse to well-dressed speeches which espouse Hindutva in the abstract but whose covert purpose is to secure political mileage by appealing to religion. One must rest content with the hope that courts will exercise the utmost vigilance in discharging the additional burden they have undertaken in discerning the dividing line between permissible and prohibited references to 'Hindutva' and 'Hinduism' in election speeches.

It is difficult to agree with the Court's ruling that Mr. Joshi's statement that the first Hindu State will be established in Maharashtra is by itself not an appeal for votes on the ground of his religion but "the expression, at best, of such a hope". Surely one cannot express hopes which are anti-secular. Suppose the hope expressed was that in future India would be populated only by persons belonging to the Hindu religion. Or suppose a religious missionary were to hope that in the next decade all Indians would become Christians or Muslims. Such expressions have a strong religious tone and are anti- secular. The Court should not have stopped short at expressing its disdain and describing the statement as despicable but should have held it to be a corrupt practice. It is tragic that a person making such a despicable' statement continues to head the Government in Maharashtra.

(Source: The Secular Democracy, January, 1996)